Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations 38101

Manufacturer Subject lines

Toyota Cressida.

Lexus ES.

Lexus GS.

Lexus LS.

Lexus SC

VOLKSWAGEN ............................................................................................................................... Audi 5000S.

Audi 100.

Audi 200.

Audi A6.

Audi S4.

Audi S6.

Audi Cabriolet.

Volkswagen Cabrio.

Volkswagen Corrado.

Volkswagen Golf/GTI.

Volkswagen Passat.

Volkswagen Jetta/Jetta III

1Exempted in full beginning with MY 1999.

2 Renamed the Acura RL beginning with MY 1997.

3 Replaced by the Acura TL beginning with MY 1996.

4 Replaced by the SL320 beginning with MY 1997.

5 Renamed the SL500 beginning with MY 1994.

6 Renamed the SL600 beginning with MY 1994.

7Exempted in full beginning with MY 1999.

Appendix A—II to Part 541—High-Theft Lines With Antitheft Devices Which are Exempted In-Part From the PartsMarking Requirements of This Standard Pursuant to 49 CFR Part 543

Manufacturers Subject lines Parts to be marked

GENERAL MOTORS .................................................. Buick LeSabre ............................................................ Engine, Transmission.

Cadillac Deville ........................................................... Engine, Transmission.

Cadillac Eldorado ....................................................... Engine, Transmission.

Cadillac Sixty Special 1 .............................................. Engine, Transmission.

Oldsmobile Ninety-Eight ............................................. Engine, Transmission.

Pontiac Bonneville ...................................................... Engine, Transmission.

Pontiac Firebird .......................................................... Engine, Transmission.

Chevrolet Camaro ...................................................... Engine, Transmission.

Oldsmobile Eighty-Eight ............................................. Engine, Transmission.

1 Renamed the Cadillac Concours beginning with MY 1994.

Issued on: June 30, 1998.

L. Robert Shelton,

Associate Administrator for Safety

Performance Standards.

[FR Doc. 98–18538 Filed 7–14–98; 8:45 am]

BILLING CODE 4910–59–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 980406085-8164-01; I.D.

031998C]

RIN 0648–AJ27

Fisheries off West Coast States and in

the Western Pacific; Pacific Coast

Groundfish Fishery; Management

Measures for Nontrawl Sablefish

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to

implement management measures

recommended by the Pacific Fishery

Management Council (Council) for the

limited entry, fixed gear sablefish

fishery north of 36° N. lat. These

measures provide a three-tiered

management regime with three different

cumulative landings limits for permit

holders participating in the regular,

limited entry, fixed gear sablefish

fishery. The cumulative landings limit

available to a permit holder depends on

the tier to which the permit is assigned,

with tier assignment based on historical

and more recent participation in the

fixed gear sablefish fishery. Both the

limited entry and open access fixed gear

sablefish fisheries will be closed for 48

hours immediately before and for 30

hours immediately after the regular

fishery, with different restrictions

applying during the two closed periods.

Provisional 1997 regulatory language is

updated by this final rule. These actions

are intended to recognize the historical

and more recent participation and

investment in the fixed gear sablefish

fishery while eliminating the traditional

‘‘derby’’ style management system.

DATES: Effective July 10, 1998.

ADDRESSES: Copies of the

Environmental Assessment/Regulatory

Impact Review/Initial Regulatory

Flexibility Analysis (EA/RIR/IRFA) and

the Final Regulatory Flexibility Analysis

(FRFA) for this action are available from

the Pacific Fishery Management

Council, 2130 SW. Fifth Avenue, Suite

224, Portland, OR 97201. Comments

regarding the collection-of-information

requirements contained in this rule

should be sent to William Stelle,

Administrator, Northwest Region,

NMFS, 7600 Sand Point Way NE, BIN

C15700, Seattle, WA 98115–0070 or to
38102 Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations

William Hogarth, Administrator,

Southwest Region, NMFS, 501 W.

Ocean Blvd., Suite 4200, Long Beach,

CA 90802–4213, and to the Office of

Information and Regulatory Affairs,

Office of Management and Budget,

(OMB) Washington, DC 20503 (ATTN:

NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:

Yvonne deReynier at 206–526–6140, or

Wes Silverthorne at 562–980–4000.

SUPPLEMENTARY INFORMATION:

Background

NMFS issues this final rule to

implement recommendations from the

Council, under the authority of the

Pacific Coast Groundfish Fishery

Management Plan (FMP) and the

Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act), to implement

changes to the management measures

for the limited entry, fixed gear sablefish

fishery. The notice of proposed

rulemaking for this action (63 FR 19878,

April 22, 1998) fully described the

background and rationale for the

Council’s recommendations. NMFS

requested public comments on this

action through May 22, 1998. NMFS

received 26 letters during the comment

period, which are addressed later in the

preamble to this final rule.

In summary, limited entry permits

with sablefish endorsements are divided

into three tiers, with placement based

on the cumulative sablefish catch

associated with that permit from 1984

through 1994. Each tier is allowed a

different cumulative limit during the

regular, limited entry, fixed gear fishery.

These measures apply only north of 36°

N. lat.

Three-Tier Program

NMFS has accepted the Council’s

recommendation for qualifying criteria

for the three different tiers. To qualify

for the highest tier, Tier 1, a permit must

be associated with at least 898,000 lb

(407.33 mt) of cumulative sablefish

landings made from 1984 through 1994.

To qualify for the middle tier, Tier 2, a

permit must be associated with between

380,000 lb (172.36 mt) and 897,999 lb

(407.33 mt) of cumulative sablefish

landings made from 1984 through 1994.

Permits with sablefish endorsements

that are associated with less than

380,000 lb (172.36 mt) of cumulative

sablefish landings from 1984 through

1994 qualify for the lowest tier, Tier 3.

Analysts examined the distribution of

sablefish cumulative catch histories

over the 1984 through 1994 period to

determine whether there were any large

gaps between groupings of the

cumulative catch histories of limited

entry permits with sablefish

endorsements that might serve as logical

breakpoints between tiers. The Council

wanted broad divisions of permit catch

history between permits assigned to

different tiers. Based on the analysis

available at its meetings, the Council

determined that the above qualifying

criteria for Tier 1 reflected the largest

break among a series of high catch

history breakpoints, and that the

qualifying criteria for Tier 2 reflected

the largest break among a series of midrange catch history breakpoints.

Permit catch history will be used to

determine tier assignments for limited

entry permit holders with sablefish

endorsements. Permit catch history

includes the catch history of the

vessel(s) that initially qualified for the

permit, as well as subsequent catch

history that was accrued when the

limited entry permit or permit rights

were associated with other vessels.

Permit catch history also includes the

catch associated with any interim

permit held during the appeal of an

initial NMFS decision to deny the initial

issuance of a limited entry permit, but

only if (1) the appeal for which an

interim permit was issued was lost by

the appellant, and (2) the owner’s

current permit was used by the owner

in the 1995 limited entry sablefish

fishery. The catch history of an interim

permit where the full ‘‘A’’ permit was

ultimately granted will also be

considered part of the catch history of

the ‘‘A’’ permit. If the current permit is

the result of the combination of multiple

permits, the combined catch histories of

all of the permits that were combined to

create a new permit before March 12,

1998, will be used in calculating the tier

assignment for the resultant permit,

together with any catch history (during

the qualifying period) of the resultant

permit. Only sablefish catch regulated

by the FMP that was legally taken with

longline or fishpot gear will be

considered for tier placement. Harvest

taken in tribal sablefish set-asides will

not be included in calculating permit

catch histories.

Under the regulations that

implemented Amendment 9 to the FMP,

which established the sablefish

endorsement requirement, if two limited

entry, fixed gear permits are combined

to generate a single permit with a larger

length endorsement, the resulting

permit also will have a sablefish

endorsement only if all permits being

combined have sablefish endorsements.

After tier assignments are issued by

NMFS, if permits are combined, the

resulting permit will be assigned to the

highest tier held by either of the original

permits before combination.

The three-tier program maintains a

ratio between the cumulative landings

limits for the three tiers that

approximates the 1991–1995 catch

relationships between permits assigned

to each tier on a group average basis.

Setting cumulative limits by ratios

ensures that the long-term relationships

between the cumulative limits for each

tier will remain stable. With cumulative

limits set by ratio, impacts from changes

in the numbers of permits distributed to

each tier will be shared by all vessels in

the fleet. The cumulative landings limit

ratio for the tiers is 3.85 (Tier 1); 1.75

(Tier 2); and 1 (Tier 3). For example, if

Tier 3 had a cumulative limit of 10,000

lb (4,536 kg), Tier 2 would have a

corresponding cumulative limit of

17,500 lb (7,938 kg), and Tier 1 would

have a corresponding cumulative limit

of 38,500 lb (17,463 kg).

Overhead guidelines will be used to

set the cumulative limits for each tier

and for the overall expected catch for

the fishery. ‘‘Overhead’’ is defined as

the difference between the expected

harvest level and the total harvest that

would occur if each permitted vessel

took its cumulative limit (maximum

potential harvest). The concept of

overhead is based on the premise that

not all participants in this fishery will

harvest the cumulative limit. NMFS

considers a fishery where all

participants have the opportunity to

catch a cumulative limit and are all able

to catch that limit to be an Individual

Fishing Quota (IFQ) program. The

Magnuson-Stevens Act imposes a

moratorium on implementation of new

IFQ programs until October 1, 2000.

Cumulative limits and season lengths

for the limited entry, fixed gear regular

sablefish fishery will be set to achieve

a projected overhead, based on the most

reasonable assumptions, of at least 25

percent and an overhead based on

worst-case assumptions of at least 15

percent for the fleet as a whole. The

overhead goal for any single tier will be

at least 15 percent, based on the most

reasonable assumptions.

Tier assignments for limited entry

permits with sablefish endorsements

will ‘be issued by NMFS, before the start

of the regular 1998 limited entry, fixed

gear sablefish season. NMFS has used

landings records from the Pacific States

Marine Fisheries Commission’s Pacific

Fisheries Information Network (PacFIN)

database to preliminarily determine

which limited entry permits meet the

Council-recommended qualifications for

each tier.

The Sustainable Fisheries Division

(SFD), NMFS Northwest Region, has
Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations 38103

notified each limited entry permit

owner with a sablefish endorsement by

letter whether PacFIN records indicate

that his or her permit qualifies for Tier

1, Tier 2, or Tier 3.

A permit owner who believes that his

or her permit qualifies for a different tier

than the tier indicated by PacFIN

records has 30 days to send supporting

documentation, such as fish tickets, to

the SFD to demonstrate how the

qualifying criteria for a different tier

have been met. A new tier will be

assigned if the permit owner

demonstrates that his or her permit

meets the qualifying criteria. If the SFD,

after review of the information

submitted by the permit owner, decides

that the permit does not qualify for the

tier requested by the owner, the owner

will have 30 days to appeal the decision

to the Regional Administrator, NMFS

Northwest Region. Unlike the initial

limited entry permitting process but

similar to the sablefish endorsement

issuance process, there will be no

industry appeals board to review

appeals of tier placement.

For the 1998 season only, permit

owners with sablefish endorsements

will be issued certificates of tier

assignment that will need to be kept

with, and considered part of, their

limited entry permits. When limited

entry permit owners renew their permits

for 1999, tier assignments for those

limited entry permit owners with

sablefish endorsements will be

indicated directly on the limited entry

permit.

Applications for sablefish

endorsements, implemented in 1997

under Amendment 9 to the FMP, will

not be accepted after November 30,

1998, which is the limited entry permit

renewal deadline for the 1999 fishing

year.

Changes From the Proposed Rule

NMFS received Council

recommendations on the two changes to

the proposed rule described in this

section.

At the March 1998 Council meeting,

the Council learned from its analysts

that the initial analysis presented before

the 1997 Council decision on the threetier program had two mistakes directly

related to the Council’s decision. The

Council reconsidered the affected

portions of its recommendations. The

first mistake was that the database used

for the initial analysis for the three-tier

program had inadvertently included

some sablefish taken in waters off

Alaska and later landed at a Pacific

Coast port. Tier qualification catch

history includes only sablefish landed

from the Pacific Coast groundfish

fishery. The catch histories of some

permits were inflated because of this

inclusion of Alaska-caught sablefish.

Once the Alaska-caught sablefish was

removed from the permit catch history

database, the tier qualification levels

had to be re-analyzed to determine

whether the breaks between permit

catch histories (described above) were

still large enough to draw clear

distinctions between permits above and

below the breaks. The Council

particularly did not wish to set a

qualification level that was within a few

thousand pounds of the next lowest

permit catch history level. Removal of

Alaska sablefish data did not

significantly change the breaks in

cumulative catch histories identified by

the Council at its November 1997

meeting. The break for Tier 1, 898,000

lb (407.33 mt), actually became larger,

and so is a more effective fleet-division

indicator than it was when the Alaska

data were included in the cumulative

catch histories. The qualifying amount

that the Council had originally

recommended for Tier 2, 411,000 lb

(186.43 mt), also occurs at a large break

in cumulative catch histories, but it is

no longer the lowest large breakpoint in

its class. Analysis presented at the

March 1998 meeting showed that

398,000 lb (180.53 mt) was the most

significant break in cumulative catch

histories, and the lowest large break

among mid-range breakpoints. The

Council commented on this issue,

stating that it preferred to use the lowest

large breakpoint in the mid-range area.

In order to cushion any further possible

data mistakes, the Council

recommended setting the Tier 2

qualifying poundage at 380,000 lb

(172.37 mt). NMFS received no public

comment on this issue, and implements

this change with this final rule.

The second mistake in the November

1997 analysis was made when the

Council considered whether permits

that were the result of the combination

of two earlier permits would be assigned

to a tier based on the cumulative catch

history of one of the earlier permits, or

based on the combined cumulative

catch histories of both permits together.

The analysis presented to the Council in

November indicated that no permit

holder would be denied qualification to

a higher tier if the cumulative catch

history of the highest of two combined

permits were used as the qualifying

catch history for that permit, rather than

the summed cumulative catch history of

both permits that were used to create

the currently held permit. However,

analysts later discovered a permit that is

a result of two previously combined

permits with catch histories that would

each qualify for Tier 2, but that

combined would qualify the resultant

permit for Tier 1. This mistake was

presented to the Council at its March

1998 meeting, after which the Council

recommended changing its initial

decision so that permits that are the

result of a combination of multiple

permits made before March 12, 1998,

may combine the cumulative catch

histories of all of the permits that went

into the combination in order to

determine the tier qualification status

for the resultant permit. The Council

only allowed this change for preexisting combinations, but not for future

combinations, so that permit holders

would not have an incentive to buy up

latent effort in the fleet to expand the

capacity of their own operations. During

the comment period, NMFS received

two letters expressing support for the

new Council recommendation. NMFS

implements this change with this final

rule.

Management Measures for 1998 and

Beyond

To facilitate enforcement, there will

be a 48–hour closure before the start of

the limited entry, fixed gear regular

season, during which time all fixed gear

north of 36° N. lat. must be out of the

water, and no sablefish may be landed

by a fixed gear vessel. The 1998 preseason closure will begin at noon local

time (l.t.) on Thursday, July 30, and end

at noon l.t. on Saturday, August 1, at the

start of the fishery. There will be no

opportunities for any fishers to set their

gear before the 1998 regular season start

time.

The 1998 limited entry, fixed gear

regular season will begin at noon l.t. on

Saturday, August 1, 1998. Only holders

of limited entry permits with sablefish

endorsements and tier assignments may

participate in this fishery. The fishery

will be 6 days long, ending at noon l.t.

on Friday, August 7, 1998. The

cumulative landings limits for

participants in the limited entry, fixed

gear sablefish fishery will be 52,000 lb

(23,587 kg) for Tier 1; 23,500 lb (10,660

kg) for Tier 2, and 13,500 lb (6,124 kg)

for Tier 3. During the regular and mopup seasons, there is a trip limit in effect

for sablefish smaller than 22 inches (56

cm) total length, which may comprise

no more than 1,500 lb (680 kg) or 3

percent of all legal sablefish 22 inches

(56 cm) or larger, whichever is greater.

To facilitate enforcement at the end of

the regular season, there will be a 30–

hour post-season closure north of 36° N.

lat., during which time no sablefish

taken with fixed gear (limited entry or

open access) may be taken and retained
38104 Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations

for the 30 hours immediately after the

end of the regular season. However,

sablefish taken and retained during the

regular season may be possessed and

landed during that 30–hour period. The

post-season closure has been changed

from 48 hours in duration to 30 hours

in duration. This shorter post-season

closure is a compromise between vessel

owners with pot gear who would prefer

a short post-season closure so that they

may retrieve gear as soon after

offloading as possible, and vessels

delivering sablefish to ports in Puget

Sound that are farther from the main

fishing grounds than from direct ocean

ports. In 1998, this 30–hour post-season

closure will begin at noon l.t. on August

7 and end at 1800 hours l.t. on August

8. Gear may remain in the water during

the 30–hour post-season closure;

however, gear used to take and retain

groundfish may not be set or retrieved

during this period.

Commencing at 1800 hours l.t.,

August 8, 1998, the daily trip limits for

fixed gear sablefish will resume at 300

lb (136 kg) per day north of 36° N. lat.

(Daily trip limits apply to calendar days.

Therefore, on August 8, 1998, a daily

trip limit may be landed between 1800

hours and 12 midnight l.t. Beginning at

0001 hours l.t. on August 9, 1998, daily

trip limits will apply to the full 24

hours.) A vessel participating in the

regular fishery must begin landing its

catch before 1800 hours l.t., August 8,

1998, and complete the offloading

before returning to sea or continuing a

trip at sea, or the daily trip limit will

apply to the fish remaining on board

after 1800 hours l.t. on August 8, 1998.

Estimates of the likely total harvest in

the regular fishery have been made

conservatively in order to ensure that

the fishery does not exceed its total

allocation. Because of this conservative

management and the need to provide

harvest overhead in setting cumulative

landings limits for the three tiers, the

regular fishery may not harvest all of the

limited entry, fixed gear allocation for

north of 36° N. lat. in excess of that

required for the daily trip limit fishery.

Following an estimation of the catch

from the regular fishery, there will be a

mop-up fishery to harvest this excess.

The recommendation on the size of the

mop-up cumulative limit will be made

by the Council’s Groundfish

Management Team, after calculation of

the actual landed catch from the regular

fishery and the daily trip limit fishery.

NMFS will announce the start date,

duration, and cumulative limit amount

for the mop-up portion of the fishery in

the Federal Register before the start of

the mop-up season.

Comments and Responses

The comments in 26 letters received

during the public comment period

ending on May 22, 1998, are

summarized below. Comments 1

through 17 were received from 12

individuals in opposition to the threetier program. Comments 18 through 30

are comments were received from 13

individuals and from an attorney

representing west Coast fixed gear

fishers. One letter in support of the rule

included a suggestion that permit

owners be allowed to stack multiple

permits to pursue multiple cumulative

limits during the regular fishery and a

suggestion that the regular fishery be

managed with an option of two different

start dates, one in April and one in

August. Neither of these suggestions

was within the scope of the proposed

rule or the Council’s considerations for

the three-tier program, so those

comments have not been responded to

below.

Comments Opposing the Rule

Comment 1: No justifiable need has

been demonstrated for tiered sablefish

allocation. Tiered allocation does

nothing to further the stated purpose of

the overall management program—to

end derby fishing. In fact, derby fishing

would be perpetuated by this program.

The three-tier program does not address

the safety-at-sea issue.

Response: For the past several years,

the Council has expressed a strong

desire to end the status quo

management regime of an open

competition derby while still

maintaining historic trends in catch

distribution among participants. Each

year, since 1987, the open competition

derby season has shortened in duration,

yet the Council has been unable to

choose whether to support the

management recommendations of longterm fleet members who wanted to

maintain their historic share of sablefish

landings, or the management

recommendations of new entrants to the

fleet who wanted to increase their future

shares of sablefish landings. The history

of the fixed gear sablefish management

regime is discussed in the preamble to

the proposed rule. Finally, for 1998 and

beyond, the Council recommended the

three-tier program, a compromise that

recognizes historic and recent fishery

participation levels. The unrestricted

competition derby will end with the

implementation of the three-tier

program.

The amount of sablefish available to

a three-tier regular fishery provides a 6-

day fishery in 1998. Without this rule,

the regular fishery would be an

unrestricted derby of 2 to 3 days. With

this rule, approximately one-third of the

expected participating vessels will be

able to slow their rate of fishing over the

rate that they would have fished under

an unrestricted derby fishery, without

reducing their catch. The Council has

several times deliberated on whether

this fishery would still be unsafe for

vessels unable to catch the cumulative

limit within the time allotted for the

fishery. Fishers who knew that they

would not be able to catch the

cumulative limit within the time

available have testified before the

Council that any increase in the number

of days in the fishery would allow them

to slow the pace of their fishing and

improve their ability to operate in a

safer manner. The Council concluded

that the three-tier program was an

appropriate compromise because it

would substantially slow the fishery

without the adverse impacts of the

alternatives that would have more

drastically redistributed the catch.

The regular fishery under the threetier program will still be a short, intense

season. However, the only management

option that has been suggested to end

such seasons entirely was to set equal,

monthly cumulative landings limits, an

option with other offsetting drawbacks.

Equal monthly landings limits would

drastically redistribute catch from

longer term participants to more recent

and smaller capacity entrants.

Cumulative limits also give fishers

incentive to aim for a limit, and in

aiming for that limit, they often exceed

the limit and must discard any fish

exceeding the limit. Discard mortality is

largely unmeasured, and thus is a

danger to the long-term health of the

fish stocks. A system of monthly limits

risks the possibility that fishers will aim

for and exceed 12 small landings limits.

The three-tier program has just the large,

regular fishery limit to aim for, plus an

expected second, smaller limit in the

mop-up portion of the fishery.

Comment 2: The three-tier program is

based solely on historic catch. Historic

catch is not mentioned in the

Magnuson-Stevens Act. The MagnusonStevens Act states that if the available

resource must be allocated to American

fishers, historic participation shall be

required. All fishers with sablefish

endorsements have shown historic

participation in the fishery.

Response: Under section 303 of the

Magnuson-Stevens Act, a Council may

establish a limited access program if it

takes into account, among other things,

‘‘historical fishing practices in, and

dependence on, the fishery.’’ The threetier program uses cumulative sablefish

landings from the 1984 through 1994
Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations 38105

period to quantify the historical fishing

practices and dependence of

participating fishers on the fixed gear

sablefish fishery.

National standard 4 of the MagnusonStevens Act states that, ‘‘Conservation

and management measures shall not

discriminate between residents of

different States. If it becomes necessary

to allocate or assign fishing privileges

among various United States fishermen,

such allocation shall be (A) fair and

equitable to all such fishermen; (B)

reasonably calculated to promote

conservation; and (C) carried out in

such a manner that no particular

individual, corporation, or other entity

acquires an excessive share of such

privileges.’’ The three-tier program is

fair and equitable to participants in the

program because it recognizes historic

and recent participation and

dependence on the fishery, and because

it divides fishing privileges in a manner

designed to minimize economic impact

on those participants, within the

constraints of the Magnuson-Stevens

Act prohibition on implementing new

IFQ programs.

Derbies, three-tier programs, and

series of monthly cumulative limits,

were three of the major alternatives

considered in this action. Each provides

a different means of controlling harvest

in this fishery, each with different

social, economic, and conservation

implications that would change over

time and with conditions in the fishery.

The implementation of any of these

alternatives would promote resource

conservation. Deteriorating social and

economic conditions resulting from

derby fishery management led to the

consideration of alternative

conservation measures.

Finally, if the fishery could be

managed in a way that would allow

each of the permits to harvest the entire

cumulative limit associated with the

tiers, each of the permits in the top tier

would be receiving just 1.4 percent of

the total catch available to that fishery.

A small number of fleet participants

own more than one permit, so it is

extremely unlikely that any one

individual, corporation, or any other

entity will acquire an excessive share of

the privileges associated with this

fishery through the three-tier program.

Comment 3: The Magnuson-Stevens

Act states that economic gain shall not

be used to allocate fish resources.

Response: National standard 5 of the

Magnuson-Stevens Act states that,

‘‘Conservation and management

measures shall, where practicable,

consider efficiency in the utilization of

fishery resources; except that no such

measure shall have economic allocation

as its sole purpose.’’ The purpose of the

three-tier program is to move away from

the unrestricted derby fishery with a

management program that allows

sablefish catch distribution to reflect

historic and recent participation levels

in the fishery. A management measure

that would improve the efficiency of the

use of a fishery resource would, among

other things, remove or discourage

redundant capacity in the fleet targeting

that resource. Derby management

encourages each fishery participant to

increase the capacity of his or her

vessel, to maximize the amount of fish

that a vessel can catch during the time

of the fishery. If the catching capacity of

each vessel in a fleet is increased to

improve its competitive advantage over

other vessels, the total catching capacity

in the fleet becomes so great that the

duration of the derby must be shortened

to prevent these vessels from exceeding

the harvest guideline for the target

species. The Pacific Coast fixed gear

sablefish fishery has had a classic case

history of a derby fishery that rushed

into the vicious spiral of ever-increasing

redundant capacity and ever-decreasing

fishery duration. The three-tier program

is intended to decrease the intensity of

this spiral by matching permits to the

tiers that most closely reflect their

historic landings shares of the fishery.

Fishers within each tier will be allowed

to pursue cumulative limits that match

more closely their current vessel

capacities, and will thus as a group have

less incentive to continue to increase

those vessel capacities. There will still

be incentive for vessels that are unable

to catch their cumulative limit in the

allotted time to increase their capacity

(about two-thirds of the fleet), but the

degree of incentive will be reduced. The

three-tier program is a compromise

program resulting from constraints

created by the Magnuson-Stevens Act

moratorium on the creation of new IFQ

programs and the major reallocative

effects of other alternative management

strategies (e.g., a year-round series of

monthly cumulative limits). Economic

allocation is not the sole purpose of this

regulation. As discussed in response to

comments 1 and 2, the rule also has

social and conservation purposes.

Comment 4: The tier system rewards

overcapitalization by large producers by

giving them an unreasonably larger

allocation of sablefish in comparison to

the rest, and majority, of the fleet.

Response: Fleet overcapitalization is

primarily the result of two factors:

individual fishers improving and

supplementing their gear and vessel

catching capabilities, and increasing

numbers of new entrants to the fleet.

Both of these factors contributed to

overcapitalization in the fixed gear

sablefish fishery. It is incorrect to say

that, during any given period, a vessel

that added gear contributed more to the

overcapacity problem than a fisher

bringing in a similar amount of capacity

as a new entrant, or to say that this

program rewards overcapitalization by

recognizing historic and recent fishery

participation. The three-tier program is

designed to reflect, in part, dependence

on the fishery.

The ratio that describes this

distribution of cumulative catch limits

between tiers approximates the 1991

through 1995 catch relationships

between permits assigned to each tier on

a group average basis. Setting

cumulative limits by ratios ensures that

the long-term relationships between the

cumulative limits for each tier will

remain stable. With cumulative limits

set by ratio, impacts from changes in the

numbers of permits distributed to each

tier will be shared by all vessels in the

fleet. The cumulative limits ratio for the

tiers will be 3.85 (Tier 1); 1.75 (Tier 2);

and 1 (Tier 3). The ratio between the

average permit catch histories for

permits in the three different tiers over

the 1984 through 1994 period is 10.9

(permits in Tier 1) to 3.9 (permits in

Tier 2) to 1 (permits in Tier 3). Tier 1

fishers will not have an unreasonably

larger allocation of sablefish as

compared with the rest of the fleet,

particularly given the difference

between the historic cumulative catch

ratio and the cumulative limits ratio

implemented by the three-tier program.

Comment 5: The tier program criteria

are arbitrary and inappropriately

inflexible. The criteria do not

adequately allow for the changing

circumstances and contingencies

common in the industry, such as boat

and gear loss, weather, price

fluctuations, etc.

Response: NMFS disagrees. The threetier program qualifying criteria include

the initial 1984 through 1988 window

period used to qualify vessels for

limited entry permits, plus the 1989

through 1994 period that was added to

the limited entry window period for

sablefish endorsement qualification. In

considering this question, it is

important to remember that NMFS

considers the relevant history to be the

history of the groundfish fishing firm as

represented by the groundfish permit.

Within the 11-year window period,

NMFS expects that most fishers had

some period of relatively low fishing

activity due to any number of possible

problems they might have had with

their boats, gear and weather, with

personal health and family needs or

with basic changes in market
38106 Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations

conditions. The long (11 years)

qualifying period reduces the impact of

any particular problem that might have

affected a fisher’s participation in this

fishery. For vessels that may have

entered the fishery in the latter part of

the qualifying period, such as those

qualifying for a limited entry permit

based on construction provisions, notice

was given as early as the November

1991 Council meeting (announced at 57

FR 4394, February 5, 1992), that

additional actions might be taken to

further restrict access to the fishery, and

that the Council was reserving the

option to not consider subsequent

investment and dependence on the

fishery in determining future allocation

questions with regard to this fishery.

The qualifying requirement represents a

balance that considers both the duration

of involvement in the fishery and the

size of the harvest operation. A fisher

who entered the fishery as a large

producer in the later part of the

qualification window would have an

opportunity to qualify for one of the

higher tiers, as would a fisher who

participated at a lower, but consistent,

level over a longer period.

Comment 6: The catch requirements

for tier placement would unfairly favor

large vessels and handicap smaller

vessels. Recent derby management has

artificially widened the catch gap

between larger and smaller vessels,

because small boats are more vulnerable

to adverse weather and must spend a

greater percent of time in transit,

loading, and offloading. Thus, the catch

rate of these smaller vessels has been

constrained during the extremely short

seasons.

Response: NMFS agrees that there is

some correlation between vessel size

and vessel catch history. However, there

are also several examples of small-sized

vessels in the Tier 1 that have had high

and consistent sablefish landings over

the entire 11-year qualifying period.

Conversely, there are very large vessels

in Tier 3 with relatively low cumulative

catch histories. Many factors contribute

to whether a vessel has a relatively large

or small sablefish catch history. In

addition to basic vessel length,

cumulative catch history might be

related to sablefish abundance near the

home port of the vessel, the fishing

skills of the captain and crew, the type

and condition of the gear used, the

condition of the vessel, choices of the

vessel owner to participate in the West

Coast sablefish fishery or in other

simultaneous fisheries, the number of

years in this fishery, and many other

possible factors. During the 1984

through 1994 window period, only the

last three seasons could be classified as

short in duration, being 15 days in 1992,

21 days in 1993, and 20 days in 1994.

These short periods necessarily

constrained the catch rates of all

participating vessels to ensure that the

fishery did not exceed the available

harvest guideline. NMFS does not agree

that smaller sized vessels necessarily

spend more time in transit, or in loading

and offloading than larger vessels.

Comment 7: High-producing pot

fishers had an advantage of high harvest

levels during the window period

because they, unlike longliners, were

allowed to set their gear before the start

of the season. This was supposedly

justified by safety concerns that boats

carrying too many pots would be

unstable.

Response: In 1993 and 1994, fixed

gear vessels were prohibited from taking

and retaining, possessing, or landing

sablefish for the 72 hours before the

start of the regular sablefish fishery (58

FR 16629, March 30, 1993). For those 2

years, all fixed gear fishers could deploy

their gear during the 72–hour pre-season

closure, but no sablefish could be taken

from the water until the season start. In

1995, longliners were prohibited from

deploying their gear until the start of the

season, while pot fishers were allowed

to deploy and bait their gear in advance

of the start of the regular season (60 FR

34473, July 3, 1995). Because tier

qualification status is based on landings

made from 1984 through 1994, the pot

pre-set allowance in 1995 and 1996 did

not affect harvest during the three-tier

qualification period.

Comment 8: The three-tier program

does not consider the impact on the

small fishing ports along the coast, as

directed by the Magnuson-Stevens Act.

Response: National standard 8 of the

Magnuson-Stevens Act requires that,

‘‘Conservation and management

measures shall, consistent with the

conservation requirements of this Act

(including the prevention of overfishing

and rebuilding of overfished stocks),

take into account the importance of

fishery resources to fishing communities

in order to (A) provide for the sustained

participation of such communities, and

(B) to the extent practicable, minimize

adverse economic impact on such

communities.’’ NMFS notes that,

according to the Council’s decisional

analysis, the three-tier program is

expected to cause little change in the

inter-port distribution of harvest over

past years’ harvest distributions.

Moreover, other alternatives to

unrestricted derby management, such as

providing a single period equal

cumulative limit fishery for all vessels

or a series of equal monthly cumulative

limits, would have imposed greater

changes to inter-port harvest

distribution than the three-tier program

implemented by this rule. The program

implemented by this rule meets the

requirements of national standard 8.

Comment 9: The three-tier plan is

only a disguised IFQ program, which is

not allowed under the MagnusonStevens Act. The ‘‘overhead’’ allowance

does not remedy this being an IFQ

program. Additionally, the season has

been artificially shortened in order to

maintain this ‘‘overhead’’ fiction,

increasing the fishery’s hazardousness

for all participants.

Response: The October 11, 1996,

Sustainable Fisheries Act significantly

revised and renamed the MagnusonStevens Act. The new changes to the

Magnuson-Stevens Act included a

moratorium on the implementation of

new IFQ programs until October 1,

2000. An IFQ is defined in the

Magnuson-Stevens Act as, ‘‘a Federal

permit under a limited access system to

harvest a quantity of fish, expressed by

a unit or units representing a percentage

of the total allowable catch of a fishery

that may be received or held for

exclusive use by a person.’’

Management measures for the limited

entry, fixed gear sablefish fishery have

been carefully designed not to violate

this IFQ prohibition. As with the 1997

equal cumulative limit fishery, the

Council recommended using overhead

guidelines in setting the cumulative

limits for each tier and for the overall

expected catch for the total fishery.

‘‘Overhead’’ is defined as the difference

between the expected harvest level and

the total harvest that would occur if

each permitted vessel took its full

cumulative limit (maximum potential

harvest). The concept of overhead is

based on the premise that not all

participants in this fishery will be able

to harvest the cumulative limit. Because

not all participants will be able to

harvest the cumulative limits, and the

remaining fish will be made available to

others in the fleet, the cumulative limits

are not held for ‘‘exclusive use by a

person.’’ These limits are merely caps

on what the most productive members

of each tier may harvest during the

regular season. NMFS considers a

fishery where all participants have the

opportunity to catch a cumulative limit

and they are all able to catch that limit

to be an IFQ program. The Council

recommended setting cumulative limits

and season lengths in 1998 and beyond

to achieve a projected overhead, based

on the most reasonable assumptions, of

at least 25 percent and an overhead,

based on worst-case assumptions, of at

least 15 percent for the fleet as a whole.

The goal overhead for any single tier
Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations 38107

would be at least 15 percent, based on

the most reasonable assumptions.

Overhead provisions ensure that fishery

participants do not have exclusive use

of the cumulative limits. Any fish that

is not harvested in the cumulative limit

fishery will be redistributed in another

catch opportunity during the mop-up

fishery. NMFS is satisfied that a

management program based on these

conservative overhead guidelines will

not result in all participating fishers

being able to catch their full cumulative

limits and that such a program will,

therefore, not be an IFQ program. NMFS

agrees that a longer season would be

more desirable for its safety benefits.

However, a longer season is not possible

under the current IFQ moratorium, and

would not achieve the Council’s goal of

ending the unrestricted derby with a

management program that recognizes

historic and recent participation.

Comment 10: Adequate consideration

has not been given to alternative means

of achieving the program’s objectives.

Alternatives to the three-tier program

include management by equal allocation

of sablefish for all limited entry permit

holders, as in 1997.

Response: NMFS disagrees that

adequate consideration has not been

given to alternative means of achieving

the program’s objectives. The history of

Council deliberation regarding this

management system was described in

the preamble to the proposed rule. The

Council specifically considered,

analyzed, and rejected options that

provide equal allocation of sablefish for

all permit holders as having too great a

redistributive effect on the fishery.

Because an option was not adopted does

not mean that it was not considered.

The 1997 management scheme for the

limited entry, fixed gear sablefish

fishery set equal cumulative limits for

all limited entry permit holders with

sablefish endorsements. This scheme

was specifically adopted for 1 year only

because a long-term equal limits policy

would have had significant adverse

social and economic effects. This

option, in addition to an option to set

monthly equal cumulative limits, was

included in the Council’s decisional

analysis for the management of this

fishery in 1998 and beyond. In addition

to these options, the Council considered

a status quo derby option, three

different three-tier options, and one

four-tier option. The Council thoroughly

analyzed and considered all seven

management options before choosing

the three-tier program implemented by

this rule.

Comment 11: One commenter

opposed to the rule supported the single

period equal cumulative limit with

mop-up option. The commenter noted

that the Council’s analysis for this issue

showed that only 18 percent of fishery

participants would experience a greater

than 5–percent decrease in their

incomes, making this less than NMFS’s

standard ‘‘significant impact’’ criteria of

20 percent.

Response: This comment appears to

refer to NMFS criteria for determining

whether an action will have a

significant economic impact on a

substantial number of small entities, a

determination NMFS makes pursuant to

the Regulatory Flexibility Act (RFA).

NMFS considers an impact to be

‘‘significant’’ if it results in a reduction

in annual gross revenues by more than

5 percent, an increase in annual

compliance costs of greater than 5

percent, compliance costs at least 10

percent higher than for large entities,

compliance costs that require significant

capital expenditures, or the likelihood

that 2 percent of the small entities

would be forced out of business. NMFS

considers a ‘‘substantial number’’ of

small entities to be more than 20

percent of those small entities affected

by the regulation that are engaged in the

fishery. This determination is discussed

in the Classification section of this rule,

and analyzed in the EA/RIR/IRFA/FRFA

for this action.

The Council set an equal cumulative

limit regime in 1997 forall sablefish

endorsement holders with the

understanding that such a division of

fishing opportunities within a fleet with

vastly differing historical fishery

participation rates and dependence

levels would be an unfair allocation as

a long-term policy. In the final rule

implementing the 1997 regime, NMFS

stated that, while the equal cumulative

limit regime was preferable to a derby,

the agency would support a 1998

management system that better reflected

historic and more recent levels of

fishery participation. NMFS does not

agree that an equal allocation for all

sablefish endorsement holders is an

appropriate management option for this

fishery. Although the single period

equal cumulative limit option would

have resulted in fewer businesses with

economic loss, the degree of impact on

those businesses would have been much

greater. Those businesses that would

have lost economically under this

option would have lost revenue to a

greater degree than those businesses

losing revenue under any of the tier

options. Comparisons of revenue losses

and gains under the different

management options considered by the

Council are analyzed in the EA/RIR/

IRFA and FRFA for this action. There is

a higher likelihood that applying the

NMFS RFA criteria to a management

measure to implement a long-term

policy of equal cumulative limits would

have resulted in a finding of significant

economic impacts to fleet participants

on the basis of the standard that more

than 2 of participating small businesses

could have been forced to cease

operations. Thus, while the three-tier

program results in a greater number of

businesses experiencing losses, those

losses are smaller, and the impacts of

the new management regime are spread

more evenly through the fleet.

Comment 12: Equal opportunity to

access the fisheries is the fair and longestablished approach to fishery

management. There is no justification

for managing this one fishery differently

from other West Coast fisheries.

Monthly trip limits have worked for

trawlers, why can’t they be used for the

longline and pot sablefish fishery?

Response: Management of the trawl

and longline fishery for sablefish

diverged in 1987, when the Council

established constraining trip limits for

the trawl fishery, but did not set trip

limits for the non-trawl fishery. Since

then, the fisheries have developed in

different manners. A sudden shift to

monthly trip limits for the non-trawl

fishery would have drastic reallocative

impacts on the fishery, which the

Council specifically wanted to avoid.

While equal trip limits could be

imposed on the fixed gear fleet, the

effect would be, and was in 1997, very

different than for trawl vessels because

of the different management paths these

two gear groups have taken. The trawl

fishery reached its current trip limit

levels over a period of many years, with

some downward adjustments made each

year. The sudden imposition of today’s

limits on a trawl fleet previously

constrained only by season length

would be extremely reallocative and

disruptive. When the size of harvests is

changed dramatically and suddenly,

rather than over time, greater

dislocations result, both in terms of

labor and business, as well as personal

capital. The monthly trip limit for

trawlers is not without problems. An

overcapitalized fleet fishing on

relatively low trip limits in a multispecies fishery may have high discard

rates, with reduced economic viability

for many of the fishery participants.

Any management scheme has

drawbacks, and the Council must

balance all competing factors in

choosing a management regime for any

fishery.

Comment 13: If a permit received an

endorsement, the Council should allow

permit holders who did not qualify for

limited entry permits to use their vessel
38108 Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations

catch history, rather than just the permit

catch history, to qualify that permit for

tier placement.

Response: Permit catch history

includes the catch history of the

vessel(s) that initially qualified for the

permit and subsequent catch histories

accrued when the limited entry permit

or permit rights were associated with

other vessels. This comment suggests

that a permit holder who purchased a

permit after the limited entry program

went into effect should be able to add

his or her personal vessel’s pre–1994

catch history to the pre–1994 catch

history of the vessel that initially

qualified for the purchased permit.

It has been the Council’s policy to

allow permit catch history to include a

vessel’s catch only from a time when

that vessel was associated with the

permit. Permit catch history includes

the catch history of the vessel that

initially qualified for the permit (before

1994), plus any catch history

accumulated by vessels using that

permit after issuance (1994 - present). It

would be inconsistent with historic

Council and NMFS policy to change

these parameters for vessel and permit

catch history for the three-tier program.

To the degree possible, it is important

to maintain consistent policy so that

people can move in and out of the

fishery and plan their fishery

investments. Changing a policy that has

been consistently followed since 1989

would create uncertainty about future

policies for current participants and

new entrants, and would require

substantial justification.

A different set of qualifying histories

would require redesign of the entire

program, with the result being a

different set of permit owners

benefitting and losing under the new

qualifying histories. If the proposal in

this comment were adopted, either the

qualifying requirements for the tiers

would have to be raised to maintain a

similar number of permits in each tier,

or the cumulative limits for all vessels

would have to be reduced in order to

accommodate a greater number of

permits in higher tiers. The net effect in

the former case is that some permits

would be moved down so that others

could move up, or that everyone would

experience a decrease in his or her

harvest so that more permits could

move up.

Comment 14: In 1992, the Council

established a window period for future

sablefish access limitation programs

with a 1991 cutoff date. A commenter

noted that fishing business decisions

were based on this cutoff date and that,

for this reason, his West Coast landings

after 1991 are not as high as they would

have been if he had known that there

would be a later cutoff date.

Response: On February 5, 1992,

NMFS published a Notice of Control

Date (57 FR 4394), indicating that the

Council was considering further access

restrictions to the limited entry

groundfish fisheries. At that time, the

Council intended to consider individual

quota (IQ) programs for West Coast

halibut and sablefish fisheries. In the

Notice of Control Date, NMFS stated, ‘‘If

IQ programs are adopted, the Council

has expressed its intent to exclude from

consideration fishing activity occurring

after November 13, 1991, in establishing

priorities for issuance and shares of

individual quotas for these fisheries.’’

The notice also explained that IQ

programs were only a potential future

management program, and that setting a

control date was intended to

‘‘discourage speculative entry into these

fisheries (sablefish and halibut) while

discussions on access control

continues.’’ Just as the Council prepared

to take final action on whether to

implement an IQ program, it received a

letter from the West Coast congressional

delegation requesting that it defer action

until national policy guidance could be

developed. The Council delayed action

in response to this letter and the

industry controversy surrounding the

issue. Subsequently, Congress enacted a

moratorium on new IFQ programs.

On August 1, 1995, NMFS published

another Notice of Control Date (60 FR

39144), this time stating that the

Council was considering establishing a

sablefish endorsement program for

limited entry, fixed gear permit holders

to control participation or effort in the

regular sablefish season. The notice read

‘‘If a limited entry program is

established, the Council is considering

June 29, 1995, as a possible control date.

Consideration of a control date is

intended to discourage new entry by

nontrawl ‘A’permit holders into the

sablefish fishery based on economic

speculation during the Council’s

deliberation on the issues.’’ This notice

also explained that the Council might

choose a different control date or might

choose a management regime thatdid

not make use of a control date. The

purpose of a published notice of control

date was to prevent fishers from rushing

into the fishery in the hopes of

accumulating catch history for possible

future management schemes.

The sablefish endorsement program

and the Council’s recommendation for a

three-tier management program have the

same 11-year qualification period of

1984 through 1994. This qualification

period incorporates catch over a long

period and includes both historic and

recent participation. It also accounts for

the fact that some fishers may depend

on different fisheries in different years

or may have some years of relatively

low catch for reasons outside their

control.

The use of control dates is a difficult

issue. Control dates are necessary for the

protection of the resources and the

fishers that are dependent on the

fishery. However, when a policy is not

developed fairly soon after the issuance

of the control date, so many changes

occur in the fishery that adherence to

old control dates lead to perceived

inequities. The need to maintain the

control date is difficult to balance with

the need to account for changes in the

fishery. One way to resolve this balance

is to recognize that one of the purposes

of the qualification criteria is to

establish degree of dependence on the

fishery. If the Council had not set the

1991 control date, the commenter may

have made investments and fished at a

level that established a degree of

dependence entitling his or her permit

to qualify for a higher tier. However,

during the intervening years, such

investment was not made, and a greater

degree of dependence on future income

from sablefish was not established.

There is a greater probability that the

commenter’s fishing enterprise will be

able to withstand a harvest reduction

associated with assignment to a lower

tier, or the need to purchase a permit for

a higher tier, than an enterprise that has

harvested at a higher rate. It is also

possible, depending on his or her catch

history, that, even in the lowest tier, the

commenter will experience an increase

relative to recent harvests.

Comment 15: A commenter suggested

that the qualifying amount for Tier 1

should be lower than it is, because some

long-time participants in the fishery

may be placed in Tier 2.

Response: As discussed in this

document and in the preamble to the

proposed rule for the three-tier program,

the tier qualification amounts are based

on the largest breaks between a ranking

of the cumulative catch histories of all

of the limited entry permits with

sablefish endorsements. A permit’s tier

placement reflects the catch history

associated with that permit, as

compared with the catch histories

associated with all of the other permits

with sablefish endorsements. These 163

permits are associated with a wide range

of cumulative catch histories, from

under 40,000 lb (18.14 mt) cumulative

catch history from 1984 through 1994 to

over 3,000,000 lb (1,360.78 mt)

cumulative catch history during that

same period. The breakpoints in this

three-tier program fall at levels where
Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations 38109

there were large and obvious divisions

between groupings of permit catch

histories.

Qualification requirements have to do

not only with being a fisher and a boat

owner, but also with the level of

participation in the fixed gear sablefish

fishery. A long-term owner in the

fishery and steady participant should

end up in a tier somewhat reflective of

his or her general harvest levels.

Because the program cannot provide

individual allocations due to the

Magnuson-Stevens Act’s moratorium on

IQ programs, there will inevitably be

some reallocation from historic catch

shares; some fishers will receive more

than their demonstrated production

levels and others will receive less. To

those who sold a vessel or permit with

catch history or who recently invested

in a vessel with little catch history,

many notices have been given since the

close of the 1988 limited entry window

period that access rules for the fishery

might change overtime.

Comment 16: If there is to be a tiered

system, the regulations should have an

appeal procedure under which hardship

circumstances adversely affecting an

individual boat owner’s tier placement

can be heard and placement upgraded if

adequately justified.

Response: A permit holder eligible for

participation in the three-tier program

has the opportunity to appeal his or her

permit’s tier placement if that permit

holder believes that the permit has been

placed in the wrong tier based on

incorrect information about the catch

history associated with that permit. Like

the sablefish endorsement program, the

three-tier program does not include a

hardship provision for tier placement.

The three-tier program has a long

qualifying period (1984 through 1994)

that encompasses the limited entry

window period plus more recent years.

Tier assignments are based on catch

history of the permit, which includes

the catch history of the vessel that

initially qualified for the permit during

the time before the permit was issued,

plus any subsequent catch made by

vessels operating under the permit. The

qualifying window period for limited

entry permits was July 11, 1984, through

August 1, 1988. Most vessels that

qualified for an initial limited entry

permit based on personal hardship had

to have been fishing before the end of

the limited entry qualifying period.

Every permit should have a long permit

history, except for those that qualified

under vessel construction or conversion

criteria.

The vessel construction/conversion

criteria required that construction on

the vessel must have been started before

1988 and completed by September 1990.

Vessels qualifying under this provision

had at least 4 years of fishing

opportunity during the three-tier

window period, except where

unexpected circumstances may have

prevented construction completion

before September 1990. A construction

history running from before August 1,

1988 through September 1990 or later

demonstrates some degree of ability to

survive financially without substantial

fishing income.

Vessels entering the fishery for the

first time in 1991, or later, arrived in the

fishery when there were only short

derby fishing opportunities and after the

Council had provided notice of

impending changes to fishery access

rules. A vessel that was a high producer

during the last four derbies in the threetier qualification period (1991 through

1994) may have established a high

enough permit history to qualify that

permit for Tier 2. Conversely, lowproducing vessels that participated only

in the 1991 through 1994 derbies have

shown a relatively low level of

dependence on the fishery. Vessels that

entered the fishery at a later date had

less of an opportunity to qualify for a

higher tier assignment than vessels with

a long history of fishery participation.

Comment 17: A commenter suggested

that, if the tier system is approved, upon

death of a permit holder or sale of any

permit, the permit’s associated

cumulative limit should be forfeited

into the total amount available to all

sablefish endorsement holders, to be

divided between active permits.

Response: NMFS is uncertain exactly

how this proposal would work. It

appears that the proposal is to make

sablefish harvesting a non-transferable

privilege, as opposed to the other

fishing privileges conferred by permit

ownership. Similar provisions have

been considered in the past, but rejected

because of complications having to do

with methods by which ‘‘sales’’ can be

circumvented, and defining deaths

where partnerships or corporations are

involved in the ownership. The threetier program is a program to allocate the

fixed gear portion of the limited entry

sablefish allocation between

participants in the regular fishery; it is

not a capacity reduction program.

However, the Council has expressed an

interest in capacity reduction programs,

and this idea might be considered

during future Council efforts to develop

capacity reduction programs.

Comments Supporting the Rule

Comment 18: The three-tier plan is

equitable because it recognizes historic

dependence on and investment in the

fishery as a rational method of fishery

management. The 11-year window

period of 1984 through 1994 for the

three-tier program is inclusive of both

historical participation and (at the time

of program development) current

dependence upon the fishery. Using

catch history to allocate fish is the best

method of distributing reductions in

fishing opportunity through an

overcapitalized fleet. The time has come

to implement a management regime that

will maintain a semblance of economic

stability and continued participation in

a long-established fishery.

This three-tier program is also a

compromise that gives low level

participants a higher harvest catch level

than they have historically enjoyed,

while greatly reducing the poundage of

the high level producers. Vessels in Tier

1 will lose about 3.2 percent of their

total catch, while vessels in Tiers 2 and

3 are expected to gain 1.0 percent and

0.7 percent respectively. Reallocation of

proportional catch share within and

between permit holders in each tier is

relatively modest.

The length of the qualifying period

and the lack of an exception for

personal hardship represents a balance

in the consideration of the dependence

of long-term producers and more recent

entrants. For owners of permits with a

long catch history, the lack of a

hardship provision is another way of

weighing the degree of dependence

established in the fishery. For the threetier program, the question is not

whether a vessel will qualify for a tier

assignment, but which tier assignment

the associated permit will receive.

Owners of permits not qualifying for a

higher tier may move to a higher tier by

purchasing a higher tier permit, just as

people who have not yet entered the

fishery will have to do to enter even the

lowest tier.

Response: This comment refers in part

to analysis in the EA/RIR/IRFA for this

issue that shows how the distribution of

catch shares between vessels in the

fishery would change upon

implementation of the three-tier

program. NMFS agrees that the threetier program takes both historic and

recent participation into account in

setting qualification levels for the three

tiers. NMFS also agrees that the threetier program has been carefully designed

to spread the burden of more rational

management among fleet members.

NMFS notes that many of the comments

in favor of the three-tier program were

received from persons who would have

been negatively affected (as compared

with status quo derby management) by

either the equal cumulative limits

program or the three-tier program, but
38110 Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations

who prefer the three-tier program for its

recognition of differing fishery

participation levels. However, NMFS

also notes that, despite this effort to

reduce the reallocative effects of this

program, the degree of reallocation of

proportional catch shares within the

tiers is still substantial, with some

vessels experiencing increases and

others decreases.

Comment 19: The proposed rule

would provide an effective mechanism

for the prevention of overfishing and the

achievement of optimum yield by

providing close control over harvesting

conducted by an over-capitalized fleet.

The proposed rule would enhance

conservation of the fishery by making

the fishery easier to manage, increasing

the likelihood that harvests will remain

within the harvest guideline, thus

improving the sustainability of the

fishery. For these reasons, the three-tier

program complies with national

standard 1.

Response: NMFS disagrees that the

fishery is necessarily easier to manage

under the three-tier system than it

would be under the derby. The sum of

the cumulative limits for all vessels in

the fishery substantially exceeds the

total amount of available fish.

Cumulative limit management with

overhead allows a longer fishery than

unrestricted derby management, at a

similar degree of risk and

conservativeness. Additionally, there

are enforcement and monitoring

problems with cumulative limits that

must be recognized. Under derby

management, no incentive exists for

vessels to under-report landings. Under

cumulative limit management, vessels

able to take their cumulative limits in

the available time might under-report

their landing in order to land more

sablefish than the limits allow. All of

these factors were taken into account

when the Council and NMFS balanced

conservation, safety, allocation, and

other management objectives in

selecting what they determined to be the

best management option.

Comment 20: The three-tier program

complies with national standard 2,

which states that ‘‘Conservation and

management measures shall be based on

the best scientific information

available.’’ Not only did the Council use

the most current data and analyses in

shaping the three-tier program, but also,

when analysts discovered errors in the

database of permit catch histories, those

mistakes were properly and timely

disclosed, and the Council reviewed

and reconsidered its decisions based on

the new data.

Response: NMFS agrees. Changes

from the proposed rule to the final rule

result from decisions made at the

Council’s March 1998 meeting, and are

described above.

Comment 21: According to one

commenter, opponents of the three-tier

program argue that catch history should

not be used to allocate the sablefish

resource and that equal allocation is the

most fair allocation. That same

commenter noted that ‘‘fairness of

allocation (national standard 4) is in the

eye of the receiver.’’ This commenter

pointed out that the 1997 equal limits

management allowed permits that had

caught only 16,000 pounds in a single

year to fish toward a limit of 34,000

pounds, also allocating 34,000 pounds

to permits with historical annual

catches of 300,000 pounds.

Additionally, several commenters noted

that, in the three-tier program, fishers in

Tiers 1 and 2 will lose catch

opportunity, and fishers in Tier 3 will

gain catch opportunity, commenting

that this program is a well compromised

allocation.

Response: As indicated in the

response to Comment 11, NMFS agrees

that the three-tier program, which

spreads the burden of catch reductions

more evenly through the fleet, is a fairer

allocation than a long-term equal

cumulative limit allocation.

Comment 22: The three-tier program

is an initial step toward capacity

reduction. Before capacity can be

reduced, it must be prevented from

increasing. By assigning each permit an

allocation, fleet harvest capacity cannot

increase because the incentive to catch

more fish disappears. In this way, the

program complies with national

standard 5, which states that

‘‘conservation and management

measures shall, where practicable,

consider efficiency in the utilization of

fishery resources; except that no such

measure shall have economic allocation

as its sole purpose.’’

Response: NMFS partially agrees. As

stated in the responses to Comment 3,

derby-style fishery management

encourages each individual in a given

fleet to expand his or her vessel’s

catching capacity to better compete with

all of the other vessels in the fleet. Even

if a limited entry program restricts the

number of vessels in the derby,

individual fishers have incentives to

improve the competitive abilities of

their vessels. Derby management

inevitably leads to the cumulative

catching ability of the fleet exceeding

the actual capacity needed to harvest

the available resource. The three-tier

program reduces but does not end this

derby-style management, and attempts

to match permits to tiers based on the

cumulative catch associated with those

permits. During the fishery, a portion of

vessels in each of the tiers will closely

match the catching ability associated

with the available cumulative limit and

the time available, while some vessels

will have more than enough catching

ability, and some vessels will have less

catching ability than needed for taking

that cumulative limit within the

available time.

Comment 23: One commenter stated

that he appreciated the stability this

program will bring to a fishery that has

a history of management difficulties.

The commenter noted that the stability

of this program will allow him to assure

his crew members that otherwise lean

years can be filled out by catch in the

sablefish season, and anticipated that

this stability would ensure loyalty from

his experienced crew members

throughout the year.

The commenter further noted that the

three-tier program will also allow

flexibility to participate in multiple

fisheries. The three-tier program, with a

fixed fishery period and a mop-up

following shortly afterwards, allows

fishers to get their gear on and off their

boats and to pursue the multiple

fisheries necessary to make a year round

living. The commenter also was pleased

that the three-tier program accounts for

the different fishing strategies of the

many fleet participants, the three-tier

program follows national standard 6,

which states that ‘‘Conservation and

management measures shall take into

account and allow for variations among,

and contingencies in, fisheries, fishery

resources, and catches.’’

Response: In developing the three-tier

program, one of the Council’s goals was

to begin to bring stability and rational

management to a frenetic and unstable

fishery. The Council and NMFS

recognize that fixed gear fishers

participate in a variety of fisheries

throughout the year, and season start

dates for this fishery are set to

accommodate as many alternative

fishery schedules as possible.

Comment 24: The fixed gear sablefish

fleet is diverse and divided into

opposing categories: long term

participants and new entrants, large

catch histories and small catch histories,

large boat and small boats. This program

causes some losses and gains for some

coastal communities because we all

deliver to and support coastal

communities, not because of a disregard

for coastal communities. The three-tier

program complies with national

standard 8, which states that the

interests of fishing communities be

taken into account when implementing

conservation and management

measures.
Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations 38111

Response: NMFS agrees. As stated in

the response to Comment 8, the threetier program is expected to cause little

change in the inter-port distribution of

fixed gear sablefish landings, and less

variation in inter-port distribution than

would have occurred under a long-term

system of equal cumulative limits. All of

the vessels involved in this fishery are

considered small businesses, and all of

the boats in the fishery deliver their fish

to coastal communities. National

standard 8, which addresses the

dependence of fishing communities on

fishery resources, does not constitute a

basis for allocating resources to specific

fishing communities.

Comment 25: One commenter stated

that a longer fishery, even if it is longer

only by several days, allows him to keep

and handle his bycatch. Open derbies

lead to people setting out more gear

than they can haul in a given time,

resulting in a waste of gear and hooked

fish. At the other end of the scale, a

monthly trip limit fishery would

unquestionably lead to high-grading and

increased bycatch on a regular basis.

The commenter noted that this longer

fishery will also allow him to handle his

gear more carefully, making him less

likely to lose gear. By minimizing

bycatch, the three-tier program complies

with national standard 9.

Response: Bycatch can occur for many

reasons. In a derby fishery, where all

vessels are participating at their highest

possible rates of fishing, fishers may not

have the time to fish in a selective

manner. Fish would be hauled on board

as quickly as possible without regard to

species or size, and then a portion

would be discarded according to market

or regulatory constraints on what catch

should and may be retained.

Conversely, in a fishery where all

participants have ample time to sort

through their catch and fish until their

vessels are filled with the highest value

fish, many lower value fish may be

discarded in the process. The three-tier

program will allow some fishers to slow

their rates of fishing and to improve the

selectivity of their fishing methods. To

some extent, however, selectivity in

fishing is a matter of personal ethics and

fishing skill. NMFS does agree that a

slower paced fishery should have the

much-desired result of reducing gear

abandonment and ghostfishing by lost

gear.

Comment 26: The three-tier program

provides increased safety with respect

to the status quo derby because fishers

will know how much fish they are

allowed to catch and the season can be

tailored to more favorable weather

patterns. The three-tier program allows

6 days fishing while an unrestricted

derby would probably allow 2. Several

commenters noted that any increase in

the number of days in the fishery, even

if it is from 2 days to 6 days, is a safety

improvement. These commenters

concluded that, for these reasons, the

three-tier program complies with

national standard 10, which states that

‘‘Conservation and management

measures shall, to the extent practicable,

promote the safety of human life at sea.’’

Finally, one commenter noted with

irony that if the Council had been able

to implement an IFQ program, the

fishery could be several months long,

rather than several days long.

Response: NMFS agrees that a 6-day

fishery provides greater safety than a 2-

day fishery. It is unfortunate that

overcapitalization and the reduced 1998

sablefish harvest guideline level have

severely shortened the fishery duration.

NMFS expects that the primary safety

benefit of a 6-day fishery over a 2-day

fishery will occur for the approximately

one-third of the fleet easily able to take

the allotted cumulative limit during the

time allowed. For the other two-thirds

of the fleet still operating in the derby

mode, the effect of this action on safety

is uncertain. Income will increase as the

length of the fishery increases, and it is

possible that risk-taking behavior will

decline as the amount of potential

income increases. However, the Council

decision documents show that these are

not conclusive findings.

NMFS also agrees that IFQ

management for this fishery nwould

allow fishers adequate time to catch

sablefish poundage associated with their

tiers. If this fishery were managed with

an IFQ program (an option currently

prohibited under the Magnuson-Stevens

Act), regardless of how the available

catch were allocated between permits,

each permit owner would likely be able

to catch his or her entire allocation at

any time during the year, and likely

without landings limits.

Comment 27: The three-tier program

complies with section 303(b)(6) of the

Magnuson-Stevens Act, which states

that, ‘‘Any fishery management plan

which is prepared by any Council, or by

the Secretary, with respect to any

fishery, may — (6) establish a limited

access system for the fishery in order to

achieve optimum yield if, in developing

such system, the Council and the

Secretary take into account—(A) present

participation in the fishery, (B)

historical fishing practices in, and

dependence on, the fishery, (C) the

economics of the fishery, (D) the

capability of fishing vessels used in the

fishery to engage in other fisheries, (E)

the cultural and social framework

relevant to the fishery and any affected

fishing communities, and (F) any other

relevant considerations.’’ In making its

recommendations for this program, the

Council considered all of the factors

required under this section and, has

therefore, met the requirements of this

section.

Response: NMFS agrees, see also

response to Comment 2.

Comment 28: As stated in the

proposed rule for the three-tier program,

the Council initially decided not to

allow permit owners with permits that

were the result of a combination of

multiple permits to determine their tier

placement based on the combined catch

histories of those original permits. This

decision was based on a study that

showed that no individuals currently

operating in the fishery would be

affected by that restriction. After further

study, however, analysts showed that

this first assumption was incorrect and

that this decision would negatively

affect a few individuals who had

combined their permits long before

discussions of the three-tier program.

We the commenters who would have

been harmed by this action, supported

the Council’s March 1998

recommendation to allow permits that

were a result of a combination made

before March 12, 1998, to combine their

cumulative catch histories for tier

qualification status.

Response: NMFS agrees. The

Council’s initial recommendation on

this issue was based on an incorrect

analysis. After receiving more complete

information, the Council revised that

recommendation to allow permits that

were the result of a combination of

multiple permits to receive tier

placement based on the combined

cumulative catch histories of the

permits that went into the combination.

Regulatory language detailed in the

proposed rule has been changed to

reflect public and Council comments on

this issue.

Comment 29: One commenter

supports the three-tier program, but

would like to be allowed to set his pots

for 24 hours before the opening of the

regular fishery, since it takes at least 48

hours for him to set all of his pots.

Response: As stated in the response to

Comment 7, in 1995 and 1996, pot

fishers were allowed to set their gear

before the start of the regular fishery.

Longliners were opposed to this practice

because it gave pot fishers the chance to

choose and then monopolize premium

fishing ground positions before the start

of the derby. Because of these concerns

and because the 1997 10-day fishery

period was expected to provide all pot

gear participants with sufficient time to

set and tend their gear, this pot pre-set
38112 Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations

option was not allowed in the 1997

regular fishery. The Council

reconsidered a pot pre-set allowance for

the three-tier system, but concluded that

the tiered cumulative limits would

constrain pot fisher catch levels enough

so that they would not need to fish at

a speed that would require a pre-set

allowance.

Comment 30: Several commenters

who have participated in and/or have

studied the Alaska halibut and sablefish

IFQ program support future

consideration of an IFQ program in the

fixed gear sablefish fishery once the

Magnuson-Stevens Act moratorium is

lifted.

Response: A Council may not submit

and the Secretary may not approve or

implement an IFQ program before

October 1, 2000. However, a Council

may begin development of an IFQ

program before that date.

Comment 31: The proposed rule

would not implement an IFQ system.

Under the Magnuson-Stevens Act and

NMFS interpretation, for a program to

be an IFQ program, it must grant

permits that give recipients a privilege

to harvest a specified percentage of the

total annual catch (TAC). Unless sold or

otherwise disposed of, that permit

holder has an annual, guaranteed

privilege to harvest that same

percentage of the TAC. With the threetier program, no person is guaranteed a

percent of the harvest, fishers are merely

separated into three different tiers with

three different cumulative limits that

they can then try to achieve in the given

season. The ‘‘overhead’’ system

embedded in the rule ensures that this

program is not an IFQ system. The

proposed rule would ensure that there

is no guaranteed right to a specific

amount of fish—the antithesis of an IFQ

system.

Response: NMFS agrees that the threetier program is not an IFQ program. See

response to Comment 9.

Classification

Under 5 U.S.C. 553(d)(3), the

Assistant Administrator finds good

cause to waive the 30-day delay in

effectiveness for this rule. August 1 was

chosen as a season opening date to

promote safety and to allow fishers to

participate in other fisheries aside from

this directed sablefish fishery. In order

to avoid a 2 to 3 day derby fishery this

year and to allow the limited entry fixed

gear sablefish fishery to fully benefit

from the increased vessel safety of

holding the regular and consequent

mop-up seasons before the most

difficult autumn weather, this rule must

be made effective to allow

implementation of the three-tier

program before the August 1, 1998, start

date of the regular season. To this

extent, to delay the effectiveness of this

rule would be contrary to the public

interest.

This final rule has been determined to

be not significant for the purposes of

E.O. 12866.

The Final Regulatory Flexibility

Analysis (FRFA) consists of the FRFA

supplemental analysis prepared by

NMFS, the IRFA (as submitted by the

Council and supplemented by the

preamble to the proposed rule (63 FR

19878, April 22, 1998)), and the

preamble to this final rule. NMFS

considers an impact to be ‘‘significant’’

if it results in a reduction in annual

gross revenues by more than 5 percent,

an increase in annual compliance costs

of greater than 5 percent, compliance

costs at least 10 percent higher for small

entities than for large entities,

compliance costs that require significant

capital expenditures, or the likelihood

that 2 percent of the small entities

would be forced out of business. NMFS

considers a ‘‘substantial number’’ of

small entities to be more than 20

percent of those small entities affected

by the regulation that are engaged in the

fishery.

There are 163 limited entry, fixed gear

permit owners with sablefish

endorsements. All of the permit owners

and vessels in the Pacific Coast, limited

entry, fixed gear fleet are considered

small entities. As indicated in the FRFA

for this action, 42 permit holders with

sablefish endorsements (26 percent)

would suffer a greater than 5 percent

loss in total gross fishing revenue over

what they would have been expected to

earn if the open competition derby

management had been continued for

1998.

The Council initially reviewed six

different management options aside

from status quo, open competition derby

management. Of those six options, two

options would have resulted in fewer

than 26 percent of endorsement holders

suffering a greater than 5 percent loss in

gross annual revenue. The Council

considered continuing the status quo

derby undesirable, expecting that a

future policy of unrestricted derby

fishing would cause significant negative

social and economic impacts to fishery

participants, with potentially grave

safety consequences. An option to

continue the 1997 style fishery

management of a single period equal

cumulative limit regime would have

resulted in 18 percent of endorsement

holders suffering a greater than 5

percent loss in total gross annual

revenue. Although this option would

have resulted in fewer businesses with

significant economic loss, those

businesses that would have lost

economically under this option would

have lost revenue to a greater degree

than those businesses losing revenue

under any of the tier options. This

option would have also resulted in a

greater proportion of the harvest being

reallocated amongst fleet members than

the proportion of harvest reallocation

under the three-tier management

program implemented by this rule.

There is a higher likelihood that a

management measure to implement a

long-term policy of equal cumulative

limits would have been found to have

significant economic impacts to fleet

participants on the basis of the standard

that questions whether more than 2

percent of participating small

businesses would have been forced to

cease operations. Thus, while the option

chosen by the Council results in a

greater number of businesses with

significant economic losses, the impacts

of that option are spread more evenly

through the fleet. The Council also

specifically decided when it

recommended a single period equal

cumulative limit for 1997 that it would

not recommend continuing such an

option for 1998 because of the severe

reallocative impacts.

The other option that would have

resulted in fewer than 26 percent of

permit owners suffering a greater than 5

percent loss in gross annual revenue

was a four-tiered access system. This

option was projected as leading to

greater than a 5 percent loss in gross

annual revenue for 22 percent of permit

holders with sablefish endorsements.

One major impediment to Council

recommendation of a four-tiered option

was that maintaining an overhead to

prevent designation as an IFQ system

would have been more difficult under a

four-tiered option. The greater the

number of tiers in a tiered access

system, the more likely it is that fishers

will be able to achieve their tier limits,

and the greater the likelihood that the

agency would find the program to

function as an IFQ. In an IFQ fishery, all

fishers would be allowed to use as much

time as necessary to catch whatever

cumulative limits are available for the

year. The Council chose the option that

would have the least impact on fishers’

revenues while still maintaining enough

overhead to avoid the NMFS IFQ

classification criteria and eliminating

derby management.

In addition to the single-period equal

cumulative limit fishery, the three-tier

options, the four-tier option and the

status quo derby, the Council

considered setting a year-round series of

equal, monthly cumulative limits as an
Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations 38113

option that could offer greater safety

benefits than the three-tier program.

However, a year-round fishery would

have resulted in the greatest reallocation

of catch among participants, and would

have had significant, negative economic

consequences for the greatest number of

fleet participants. The Council was also

concerned that this option would

increase discard of sablefish. Finally,

the Council expected that the effects of

year-round cumulative trip limits in this

fishery would be contrary to MagnusonStevens Act national standards on

fairness and equity, and on providing

for sustained participation and

minimizing adverse effects on fishing

communities.

This action is not expected to result

in an increase in annual compliance

costs of greater than 5 percent,

compliance costs at least 10 percent

higher for small entities than for large

entities, compliance costs that require

significant capital expenditures, or the

likelihood that 2 percent of the small

entities will be forced out of business.

In summary, all of the affected entities

are small entities. Therefore, there are

no special provisions that can be

inserted to affect small entities

differently than large entities. The losses

from one small entity turn to gains for

another small entity. In order to

eliminate the traditional, unrestricted

derby fishery, some small entities will

suffer negative economic impacts. The

Council selected the legally-available

option that would eliminate the

traditional unrestricted derby, while

minimizing the reallocation of catch.

This rule contains a collection-ofinformation requirement subject to the

Paperwork Reduction Act (PRA) that

has been approved by the OMB under

OMB Control Number 0648–0203.

Notwithstanding any other provision of

the law, no person is required to

respond to, nor shall any person be

subject to a penalty for failure to comply

with, a collection of information subject

to the requirements of the PRA, unless

that collection of information displays a

currently valid OMB Control Number.

This rule’s collection of information

burden applies only to those permit

owners who disagree with the initial

NMFS tier assignment, and who wish to

provide documentation to prove that

they have in fact met the tier

qualifications for the tier that they wish

to have assigned to their permits. It is

expected that the public reporting

burden will be 2 hours to make an

initial application and possible appeal.

This is a one-time only collection-ofinformation, and this rule imposes no

annual reporting and recordkeeping

burden. Send comments regarding the

collection-of-information burden or any

other aspect of the information

collection to NMFS and OMB (see

ADDRESSES).

List of Subjects in 50 CFR Part 660

Administrative practice and

procedure, American Samoa, Fisheries,

Fishing, Guam, Hawaiian Natives,

Indians, Northern Mariana Islands,

Reporting and recordkeeping

requirements.

Dated: July 9, 1998.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 660 is amended

as follows:

PART 660—FISHERIES OFF WEST

COAST STATES AND IN THE

WESTERN PACIFIC

l. The authority citation for part 660

continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

2. Section 660.323 is amended by

revising paragraph (a)(2) to read as

follows:

§ 660.323 Catch restrictions.

(a) * * *

(2) Nontrawl sablefish. This paragraph

(a)(2) applies to the regular and mop-up

seasons for the nontrawl limited entry

sablefish fishery north of 36° N. lat.,

except for paragraphs (a)(2)(ii), (iv), and

(vii) of this section, which also apply to

the open access fishery north of 36° N.

lat. Limited entry and open access fixed

gear sablefish fishing south of 36° N. lat.

is governed by routine management

measures imposed under paragraph (b)

of this section.

(i) Sablefish endorsement. A vessel

may not participate in the regular or

mop-up season for the nontrawl limited

entry fishery, unless the vessel’s owner

holds (by ownership or otherwise) a

limited entry permit for that vessel,

affixed with both a gear endorsement for

longline or trap (or pot) gear, and a

sablefish endorsement.

(ii) Pre-season closure—open access

and limited entry fisheries. (A) Sablefish

taken with fixed gear in the limited

entry or open access fishery in the EEZ

may not be retained or landed during

the 48 hours immediately before the

start of the regular season for the

nontrawl limited entry sablefish fishery.

(B) All fixed gear used to take and

retain groundfish must be out of EEZ

waters during the 48 hours immediately

before the opening of the regular season

for the nontrawl limited entry sablefish

fishery.

(iii) Regular season—nontrawl limited

entry sablefish fishery. (A) The Regional

Administrator will announce a season

for waters north of 36° N. lat. to start on

any day from August 1 through

September 30, based on consultations

with the Council, taking into account

tidal conditions, Council meeting dates,

alternative fishing opportunities, and

industry comments.

(B) During the regular season, each

vessel with a limited entry permit with

a sablefish endorsement that is

registered for use with that vessel may

land up to the cumulative trip limit

announced for the tier to which the

permit is assigned. Each permit will be

assigned to one of three tiers. A

cumulative trip limit is the maximum

amount of sablefish that may be taken

and retained, possessed, or landed per

vessel in a specified period of time, with

no limit on the number of landings or

trips.

(C) The Regional Administrator will

annually calculate the length of the

regular season and the size of the

cumulative trip limit for each tier in

accordance with the process specified in

chapter 1 of the EA/RIR/IRFA for ‘‘Fixed

Gear Sablefish Tiered Cumulative

Limits,’’ dated February 1998, which is

available from the Council. The season

length and the size of the cumulative

trip limits will vary depending on the

amount of sablefish available for the

regular and mop-up fisheries and the

projected harvest for the fishery. The

season will be set to be as long as

possible, under the constraints

described in chapter 1 of the EA/RIR/

IRFA, up to a maximum season length

of 10 days.

(D) During the regular and mop-up

season, limited entry nontrawl sablefish

fishers may also be subject to trip limits

to protect juvenile sablefish.

(E) There will be no limited entry,

daily trip limit fishery during the

regular season.

(iv) Post-season closure—limited

entry and open access. No sablefish

taken with fixed gear north of 36° N. lat.

during the 30 hours immediately after

the end of the regular season for the

nontrawl limited entry sablefish fishery,

may be retained. Sablefish taken and

retained during the regular season may

be possessed and landed during the 30–

hour period. Gear may remain in water

during the 30–hour post-season closure.

Fishers may not set or pull from the

water fixed gear used to take and retain

groundfish during the 30–hour postseason closure.

(v) Mop-up season—limited entry

fishery. A mop-up season to take the

remainder of the limited entry nontrawl

allocation will begin in waters north of
38114 Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations

36° N. lat. about 3 weeks, or as soon as

practicable, after the end of the regular

season. During the mop-up fishery, a

cumulative trip limit will be imposed. A

cumulative trip limit is the maximum

amount of sablefish that may be taken

and retained, possessed, or landed per

vessel in a specified period of time, with

no limit on the number of landings or

trips. The length of the mop-up season

and the amount of the cumulative trip

limit, will be determined by the

Regional Administrator in consultation

with the Council or its designees, and

will be based primarily on the amount

of fish remaining in the limited entry

nontrawl allocation, the amount of

sablefish needed for the remainder of

the daily trip limit fishery, and the

number of mop-up participants

anticipated. The Regional Administrator

may determine that too little of the

nontrawl allocation remains to conduct

an orderly or manageable fishery, in

which case there will not be a mop-up

season. There will be no limited entry

daily trip limit fishery during the mopup season.

(vi) Other announcements. The dates

and times that the regular season starts

and ends (and trip limits on sablefish of

all sizes are resumed), the size of the

cumulative trip limits for the three tiers

in the regular fishery, the dates and

times for the 30–hour post-season

closure, the dates and times that the

mop-up season begins and ends, and the

size of the cumulative trip limit for the

mop-up fishery will be announced in

the Federal Register, and may be

modified. Unless otherwise announced,

these seasons will begin and end at 12

noon on the specified date.

(vii) Trip limits. Trip and/or

frequency limits may be imposed in the

limited entry fishery before and after the

regular season, and after the mop-up

season, under paragraph (b) of this

section. Trip and/or size limits to

protect juvenile sablefish in the limited

entry or open-access fisheries also may

be imposed at any time under paragraph

(b) of this section. Trip limits may be

imposed in the open-access fishery at

any time under paragraph (b) of this

section.

* * * * *

3. In § 660.333, the first sentence of

paragraph (c)(1), paragraphs (d)

introductory text, (f)(2), and (h)(2)(iii)

are revised to read as follows:

§ 660.333 Limited entry fishery—general.

* * * * *

(c) Transfer and registration of limited

entry permits and gear endorsements.

(1) When the SFD transfers a limited

entry permit, the SFD will reissue the

permit in the name of the new permit

holder with such gear and, if applicable,

species endorsements and tier

assignments as are eligible for transfer

with the permit. * * *

* * * * *

(d) Evidence and burden of proof. A

vessel owner (or person holding limited

entry rights under the express terms of

a written contract) applying for

issuance, renewal, transfer, or

registration of a limited entry permit has

the burden to provide evidence that

qualification requirements are met. The

owner of a permit endorsed for longline

or trap (or pot) gear applying for a

sablefish endorsement or a tier

assignment under § 660.336(c) or (d) has

the burden to submit evidence to prove

that qualification requirements are met.

The following evidentiary standards

apply:

* * * * *

(f) * * *

(2) Gear endorsements, sablefish

endorsements, and sablefish tier

assignments may not be transferred

separately from the limited entry

permit.

* * * * *

(h) * * *

(2) * * *

(iii) Two or more limited entry

permits with ‘‘A’’ gear endorsements for

the same type of limited entry gear may

be combined and reissued as a single

permit with a larger size endorsement.

With respect to permits endorsed for

nontrawl limited entry gear, a sablefish

endorsement will be issued for the new

permit only if all of the permits being

combined have sablefish endorsements.

If two or more permits with sablefish

endorsements are combined, the new

permit will receive the same tier

assignment as the tier with the largest

cumulative landing limit of the permits

being combined. The vessel harvest

capacity rating for each of the permits

being combined is that indicated in

Table 2 of this part for the LOA (in feet)

endorsed on the respective limited entry

permit. Harvest capacity ratings for

fractions of a foot in vessel length will

be determined by multiplying the

fraction of a foot in vessel length by the

difference in the two ratings assigned to

the nearest integers of vessel length. The

length rating for the combined permit is

that indicated for the sum of the vessel

harvest capacity ratings for each permit

being combined. If that sum falls

between the sums for two adjacent

lengths on Table 2 of this part, the

length rating shall be the higher length.

* * * * *

4. In § 660.336, the section heading

paragraphs (a)(1), (a)(2), (b) introductory

text, (b)(1), (c) heading, and paragraph

(c)(1), are revised; and paragraphs (b)(3),

(d), and (e) are added to read as follows:

§ 660.336 Limited entry permits—sablefish

endorsement and tier assignment.

(a) * * *

(1) A sablefish endorsement with a

tier assignment will be affixed to the

permit and will remain valid when the

permit is transferred.

(2) A sablefish endorsement and its

associated tier assignment are not

separable from the limited entry permit,

and therefore may not be transferred

separately from the limited entry

permit.

(b) Endorsement and tier assignment

qualifying criteria. A sablefish

endorsement will be affixed to any

limited entry permit that meets the

sablefish endorsement qualifying

criteria and for which the owner

submits a timely application. Limited

entry permits with sablefish

endorsements will be assigned to one of

three different cumulative trip limit

tiers, based on the qualifying catch

history of the permit.

(1) Permit catch history will be used

to determine whether a permit meets the

qualifying criteria for a fixed gear

sablefish endorsement and to determine

the appropriate tier assignment for

endorsed permits. Permit catch history

includes the catch history of the

vessel(s) that initially qualified for the

permit, and subsequent catch histories

accrued when the limited entry permit

or permit rights were associated with

other vessels. The catch history of a

permit also includes the catch of any

interim permit held by the current

owner of the permit during the appeal

of an initial NMFS decision to deny the

initial issuance of a limited entry

permit, but only if the appeal for which

an interim permit was issued was lost

by the appellant, and the owner’s

current permit was used by the owner

in the 1995 limited entry sablefish

fishery. The catch history of an interim

permit where the full ‘‘A’’ permit was

ultimately granted will also be

considered part of the catch history of

the ‘‘A’’ permit. If the current permit is

the result of the combination of multiple

permits, then for the combined permit

to qualify for an endorsement, at least

one of the permits that were combined

must have had sufficient sablefish

history to qualify for an endorsement; or

the permit must qualify based on catch

occurring after it was combined, but

taken within the qualifying period. If

the current permit is the result of the

combination of multiple permits, the

combined catch histories of all of the

permits that were combined to create a

new permit before March 12, 1998, will
Federal Register / Vol. 63, No. 135 /Wednesday, July 15, 1998 /Rules and Regulations 38115

be used in calculating the tier

assignment for the resultant permit,

together with any catch history (during

the qualifying period) of the resultant

permit. Only sablefish catch regulated

by this part that was taken with longline

or fish trap (or pot) gear will be

considered for this endorsement.

Sablefish harvested illegally or landed

illegally will not be considered for this

endorsement.

* * * * *

(3) Only limited entry, fixed gear

permits with sablefish endorsements

will receive cumulative trip limit tier

assignments. The qualifying criteria for

Tier 1 are: At least 898,000 lb (406,794

kg) cumulative round weight of

sablefish caught with longline or trap

(or pot) gear over the years 1984 through

1994. The qualifying criteria for Tier 2

are: At least 380,000 lb (172,365 kg), but

no more than 897,999 lb (406,793 kg)

cumulative round weight of sablefish

caught with longline or trap (or pot) gear

over the years 1984 through 1994. Fixed

gear permits with less than 380,000 lb

(172,365 kg) cumulative round weight of

sablefish caught with longline or trap

(or pot) gear over the years 1984 through

1994 qualify for Tier 3. All catch must

be sablefish managed under this part.

Sablefish taken in tribal set aside

fisheries does not qualify.

(c) Issuance process for sablefish

endorsements. (1) The SFD has notified

each limited entry, fixed gear permit

holder, by letter of qualification status,

whether Pacific States Marine Fisheries

Commission’s Pacific Fisheries

Information Network (PacFIN) records

indicate that his or her permit qualifies

for a sablefish endorsement. A person

who has been notified by the SFD, by

letter of qualification status, that his or

her permit qualifies for a sablefish

endorsement will be issued a revised

limited entry permit with a sablefish

endorsement if, by November 30, 1998,

that person returns to the SFD the

endorsement application and pays the

one-time processing fee. No new

applications for sablefish endorsements

will be accepted after November 30,

1998.

* * * * *

(d) Issuance process for tier

assignments. (1) The SFD will notify

each owner of a limited entry permit

with a sablefish endorsement, by letter

of qualification status, of the tier

assignment for which his or her permit

qualifies, as indicated by PacFIN

records. The SFD will also send to the

permit owner a tier assignment

certificate.

(2) If a permit owner believes there is

sufficient evidence to show that his or

her permit qualifies for a different tier

than that listed in the letter of

qualification status, that permit owner

must, within 30 days of the issuance of

the SFD’s letter of qualification status,

submit information to the SFD to

demonstrate that the permit qualifies for

a different tier. Section 660.333(d) sets

out the relevant evidentiary standards

and burden of proof.

(3) After review of the evidence

submitted under paragraph (d)(2) of this

section, and any additional information

the SFD finds to be relevant, the SFD

will issue a letter of determination

notifying a permit owner of whether the

evidence submitted is sufficient to alter

the initial tier assignment. If the SFD

determines the permit qualifies for a

different tier, the permit owner will be

issued a revised tier assignment

certificate once the initial certificate is

returned to the SFD for processing.

(4) If a permit owner chooses to file

an appeal of the determination under

paragraph (d)(3) of this section, the

appeal must be filed with the Regional

Administrator within 30 days of the

issuance of the letter of determination

(at paragraph (d)(3) of this section). The

appeal must be in writing and must

allege facts or circumstances, and

include credible evidence

demonstrating why the permit qualifies

for a different tier assignment. The

appeal of a denial of an application for

a different tier assignment will not be

referred to the Council for a

recommendation under § 660.340(e).

(5) Absent good cause for further

delay, the Regional Administrator will

issue a written decision on the appeal

within 30 days of receipt of the appeal.

The Regional Administrator’s decision

is the final administrative decision of

the Department of Commerce as of the

date of the decision.

(e) Tier assignment certificates. For

the 1998 season only, permit holders

with sablefish endorsements will be

issued certificates of tier assignment

that are to be kept with and are

considered part of their limited entry

permits. When limited entry permit

holders renew their permits for 1999,

tier assignments for those limited entry

permit holders with sablefish

endorsements will be indicated directly

on the limited entry permit.

[FR Doc. 98–18751 Filed 7–10–98; 9:51 am]

BILLING CODE 3510–22–F